The 'Fair Justice Act' is neither fair nor just

Alabama liberal in death sentences State's death penalty statute, other factors contribute to large number of inmates sentenced to execution.

The gurney in newly completed lethal injection chamber is seen through a plate glass window in one of the witness rooms Monday Oct. 7, 2002 at Holman Correctional Facility in Atmore, Ala. (Mobile Register, Bill Starling)

Lisa Borden

By Lisa Borden,an attorney in Birmingham

The Alabama House of Representatives is currently considering the so-called "Fair Justice Act," which would require persons convicted of capital offenses to pursue post-conviction legal claims at the same time the direct appeals from their convictions are being considered.

While this may sound like a good plan to those unfamiliar with the process, the proposal is neither fair nor just, and will only increase the already substantial likelihood that Alabama will execute a wrongfully convicted person.

The proponents of the bill, including Attorney General Steve Marshall and the bill's sponsor, Senator Cam Ward, claim that the proposed law is fair to the convicted person because it will require the appointment of counsel for post-conviction proceedings. Alabama currently does not provide lawyers for poor defendants after the direct appeals are over, leaving them to hope and pray that someone volunteers to take their case. Sadly, though, appointed representation for post-conviction review will be of the same inadequate quality as that typically provided at trial and on appeal.

Alabama does not require attorneys representing poor people fighting for their lives to be trained or to have significant experience in capital litigation, provides them with meager resources that are not nearly comparable to what the prosecutors have available, and pays them a paltry hourly rate that is not designed to encourage them to devote the time required to provide a effective and vigorous defense. It is because of Alabama's unjust system for imposing capital punishment that many poor people are sent to death row after a trial and appeal during which their appointed counsel failed to provide even minimally effective representation.

There is no reason to believe appointed counsel for post-conviction review, where those earlier failures are supposed to be identified and corrected, would be trained, resourced, or paid better, or would perform better. And that's probably exactly what Alabama has in mind.

While it's despicable that Alabama requires poor people sentenced to death to rely on the generosity of volunteer attorneys to try to correct the injustices of substandard representation at trial and on appeal, it has been only the dedication of those volunteer lawyers that has resulted in people being freed from death row. Volunteer lawyers in post-conviction cases have brought the expertise and resources, at their own expense, that Alabama failed to provide. The resulting painstaking investigation, critical examination of evidence by experts, and thorough legal analysis, is what is required to bring about a just resolution to any case. If not for such dedication, people like Anthony Ray Hinton, who was exonerated after 30 years on death row, would have been murdered by the State of Alabama.

It does, indeed, take a long time to untangle the convoluted mess that is created by Alabama's haphazard rush to send poor people to their deaths. That time is needed because Alabama fails to do justice in the first place. The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. This certainly makes the job of the prosecution much easier - it doesn't take a lot of time or skill to railroad a poor person (guilty or not) to death row if no one is putting up a fight. The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too.

If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes. The current system, in which elected prosecutors charge poor suspects with capital murder every chance they get, knowing that the defense of those cases is likely to offer little resistance, is not just or fair for the defendants or for the families of the victims, who deserve to know not only that the case is over, but that the person convicted was actually the guilty party. Alabama spends millions on the machinery of death. Its taxpayers deserve to have the meager resources of a poor state spent more prudently on things that will improve their way of life.

As an attorney, Sen. Ward should understand that trying to require poor defendants to pursue their post-conviction claims during the appeal process is unworkable and will only result in even more wrongful convictions and executions. Perhaps he does understand that, and is willing to take that chance for the sake of politics. Either way, he should be ashamed to have his name associated with this travesty of justice. The proposal failed in the Alabama Legislature the last time it was raised, and should do so again.